Tag Archives: copyright week

Policy makers intending to promote creativity have always overemphasized the importance of “copyright protection” without addressing the wide range of other concerns that are necessary to consider when making comprehensive innovation policy. In an era where everyone, with the use of their computer or mobile device, can easily be a consumer, creator, and a critic of art, we can not afford to ignore this digital ecosystem of artistry and innovation. Yet copyright remains completely out of touch with the reality of most creators today, while the rules that do pass seem to stray even further from addressing their needs.

Last year, we identified European copyright reform as one of the main developments to watch for in 2015, and barely a month into the year this debate is already heating up. Coinciding with the release of a draft European Parliament report written by Julia Reda, Member of the European Parliament for the German Pirate Party, Copyright for Creativity (C4C) have also released their own new Copyright Manifesto this week.

Over the past two years, as talk of copyright reform has escalated, we’ve also heard complaints about the supposed expansion of fair use, or “fair use creep.” That kind of talk woefully misunderstands how fair use works.

Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate. New technologies and services depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices. Taken together, these developments mean the potential reach of copyright may extend ever further. Fair use makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive. In other words, “fair use creep” is an essential corollary to “copyright creep.”

It may seem odd to say so during Copyright Week, but copyright in itself isn’t very important. Sure, EFF expends a lot of time and energy arguing about copyright law, and some of our adversaries spend even more. But we don’t do so because copyright has any independent value. Rather, its value is derived from its ability to “promote the Progress of Science and useful Arts” (in the words of the US Constitution), as well as to promote other important values such as the rights to freedom of expression, privacy, education, and participation in cultural life.

Conversely, the menace of copyright law lies in its potential, when enacted or applied without due balance, for it to subvert those very values. When copyright monopolies are misused to attack the rights or hinder the freedoms of users, we often instinctively turn to copyright law for a remedy—but just as often, we may not find it there. (Fair use, although important, only goes so far.)

That’s when we need to turn to other areas of law for recourse, including competition or antitrust law, consumer protection law and privacy law. We can also look outside the law altogether, to norms and technology that can also help rebalance the interests of copyright owners with those of users; for example open access policies, and (so far as the law allows) circumvention tools.

From phones to cars to refrigerators to farm equipment, software is helping our stuff work better and smarter. But those features come at a high hidden cost: the rapid erosion of ownership. Why does that matter? Because when it comes to digital products, owners have rights. Renters on the other hand, have only permission.

The source of the problem is simple: copyright. You may own your device, but your use of the software in it is usually governed by the terms of an End-User License Agreement (or EULA). And that license agreement is likely to restrict your ability to tinker with your stuff. Typical clauses forbid reverse-engineering (e.g., figuring out how the software works so you can adapt it), transfer (e.g., giving it to a friend or selling it on the secondary market), and even using “unauthorized” repair services at all.

And then there’s repair-manual lockdown, which happens when manufacturers refuse to publish crucial repair information (including the manuals themselves, but also things like diagnostic codes for cars)—and then threaten to sue anyone else who tries to do so with a lawsuit for copyright infringement.

The end result: fair uses are impeded, users are disempowered and trained to go hat in hand to the Apple store just to change a battery (rather than doing it themselves). Users are forced to make do with DRM-crippled devices that are fundamentally defective and compromise our security.